Health policy implications of corporate social responsibility provisions in international investment agreements

Abstract Objective To analyse and classify inclusions of corporate social responsibility in international investment agreements, especially inclusions with reference to public health. Method We extracted the text of international investment agreements containing corporate social responsibility inclusions from the Electronic Database of Investment Treaties. We conducted a documentary analysis of the corporate social responsibility inclusions, and we developed a typology categorizing inclusions based on level of detail and reference to international commitments. Findings Of the 3816 agreements signed as of October 2023, 127 agreements contain corporate social responsibility inclusions. Since the first inclusion of corporate social responsibility in 2008, the percentage of agreements containing such inclusion signed each year has steadily increased from 4.6% (4/86) in 2008 to 42.8% (21/49) in 2018 and 33.3% (3/9) in 2023. Using the typology we developed, we categorized the level of detail as follows: nine were minimal, 27 were low, 35 were low-medium, 107 were medium, 11 were medium-high and seven were high. Health is mentioned in 36 of these inclusions. Conclusion This analysis indicates that international investment agreements increasingly incorporate a high level of detail on expectations regarding investors’ corporate social responsibility. Such provisions offer a potential tool to increase government guidance and accountability of global corporations, including with respect to governments’ public health objectives.


Introduction
The term corporate social responsibility reflects a shift in the norms and expectations of the public and governments regarding corporate behaviour and its impact on objectives including public health.Globalization, along with increasing public awareness of the potential negative impacts of corporate investors, particularly for the environment and public health, have facilitated this shift. 1,2Beyond their responsibility to shareholders, corporations are now expected to integrate goals beyond profit-making into their operations. 3One channel for companies seeking to achieve these goals is through corporate social responsibility, which broadly spans corporate citizenship, cause-related marketing, stakeholder management, universal rights and sustainable development. 4In this paper, we use the European Commission's understanding of corporate social responsibility, defined as the responsibility of enterprises for their impacts on society. 5Guidelines, standards and principles of corporate social responsibility have played a key role in defining and legitimizing the expected obligations of businesses at the international and national levels. 6Soft law instruments such as the United Nations (UN) Global Compact 7 have formalized the promotion of corporate social responsibility, 2 while governments have also contributed through taking a more holistic approach to development in line with the sustainable development goals (SDGs) including those relating to public health. 8The Organisation for Economic Cooperation and Development (OECD), has particularly played a key role in supporting governments in the development of international investment agreement provisions that place a responsibility on the investor.The OECD introduced the term responsible business conduct as an alternative to corporate social responsibility, in cooperation with nongovernmental organizations, businesses and trade unions. 9Responsible business conduct refers to "making a positive contribution to economic, environmental and social progress with a view to achieving sustainable development and avoiding and addressing adverse impacts related to an enterprise's direct and indirect operations, products or services." 5ecently, heightened government interest in corporate social responsibility -notably for its potential to support the achievement of goals relevant to sustainable development and public health -has led to new provisions within international investment agreements.These provisions place expectations on corporate investors regarding their corporate social responsibility activities, including with respect to public health considerations.International investment agreements are intergovernmental treaties that promote and remove barriers to foreign direct investment and trade, and include bilateral investment treaties, and free trade and investment agreements. 10The focus of international investment agreements is the protection of investor rights as a means to promote and attract foreign investment, and many include a mechanism for investor-State dispute settlement, through which investors can submit disputes against States. 11][13] For example, Phillip Morris International disputed tobacco legislation on plain packaging in Australia and Uruguay, costing these governments millions of dollars in defending their legitimate public health policy measures. 14Therefore, international investment agreements are considered to be a commercial determinant of health. 15 key issue underpinning public health concerns about international investment agreements is their nearly exclusive focus on protecting investor rights.The inclusion of corporate social responsibility provisions in international investment agreements represent efforts to balance corporate investor rights with government priorities, through the creation of investor obligations that encourage investors to align with government policy objectives, including public health. 8,16,17Furthermore, these provisions in international investment agreements are an avenue to transform soft law encouragement of corporate social responsibility to a form of hard law, to ensure that corporate social responsibility aligns with government priorities. 2his movement has been further enabled by the entrenchment of public health in sustainable development objectives. 18orporate social responsibility has the potential to contribute to population health and health equity through societal and multisectoral approaches. 192][23][24][25] Evidence shows that corporate social responsibility initiatives such as self-regulatory pledges do not generate substantial improvements in public health. 26At the same time, and in direct contrast to stated aims of corporate social responsibility to improve health, evidence suggests the influence of multinational corporations in watering down national health policy measures. 27The resulting disconnect between corporate social responsibility activities and government policy objectives for improving public health has contributed to increasing attention to the potential for governments to play a more active role in monitoring corporate social responsibility, including through international investment agreements.
As a result, governments' efforts to increase companies' obligations and accountability in respect to corporate social responsibility through international investment agreements have implications for public health.Understanding these new inclusions and the extent to which they incorporate health can contribute to identifying avenues for improving corporate social responsibility from a health perspective.Here we examine the nature of these inclusions, and potential implications for public health.

Methods
To identify corporate social responsibility in international investment agreements, we searched the Electronic Database of Investment Treaties 28 in October 2023 for agreements containing mention of "corporate social responsibility," "social responsibility" and/or "responsible business conduct".Agreements were included if they were signed or in force and contained one of the above-mentioned search terms.Agreements were excluded if they were a model agreement or if the search term was found only in the annex.We imported the text of the eligible agreements into NVivo (Lumivero, Denver, United States of America) and coded text specific to these three terms, along with the parties involved, the location of the terms within the agreement, and mentions of health and sustainable development within the agreements.We also compiled the agreements into a data set that detailed the parties to the agreements; dates the agreements were signed; type of agreement; and the World Health Organization (WHO) regions and World Bank gross national income categorizations of those parties.
To identify the existing research on corporate social responsibility inclusions in international investment agreements, we reviewed the academic literature between June and October 2022 (searching Google Scholar, the ProQuest Central database and the legal database HeinOnline) and grey literature (searching Google) using the search terms "corporate social responsibility" and "international investment agreements" (including similar terms such as "treaty").We deemed an article or report to be relevant if it examined the relationship between corporate social responsibility and public health, or the inclusion of corporate social responsibility provisions in international investment agreements.One author extracted relevant information to the referencing software Zotero (Corporation for Digital Scholarship, Vienna, United States) and prepared initial review reports of the key considerations relevant to, and the historical development of, corporate social responsibility inclusions in international investment agreements.
Informed by the review of the agreements, the literature review and the policy options detailed by the United Nations Conference on Trade and Development in 2015, 29 we identified two important features of corporate social responsibility inclusions: (i) reference to guidelines, standards and principles of corporate social responsibility; and (ii) a description of corporate activities and obligations States seek to place on corporate investors.We then conducted a documentary analysis of the corporate social responsibility inclusions in the extracted international investment agreements.First, one author coded the data to these two characteristics, as well as other descriptive features including parties to the agreement, agreement type, year signed and placement of inclusion (in the preamble or as a provision outside of it), using NVivo.We analysed the extent to which the two features were demonstrated in the text of the inclusions, and created typology categories that reflected the spectrum of the features evident in the data (Table 1).We reviewed and discussed these typology categories, with reference to the literature.One author then recoded the data to these detailed typology categories, and analysed the data to examine the temporal evolution of the corporate social responsibility inclusions and leading parties against the different types.

Results
Corporate social responsibility provisions in international investment agreements are relatively new, but have increased rapidly in numbers.Of the 3816 international investment agreements signed as of October 2023 (the first agreement dating back to 1948), 28  States and the Republic of Serbia (2009), respectively.
The literature review identified significant international developments that have accompanied the rise of corporate social responsibility inclusions in international investment agreements (Fig. 1).The development of corporate social responsibility guidelines and principles such as the UN Guiding Principles on Business and Human Rights, 35 UN Global Compact 7 and the OECD Guidelines for multinational enterprises on responsible business conduct, 36 have helped to formalize and legitimize corporate social responsibility through soft law. 6Tragedies involving investors have also elevated the importance of corporate social responsibility, allowing that businesses, particularly foreign investors operating in low-and middle-income countries, be held accountable for their impact on society. 2,37xamples of such tragedies were the Apple Foxconn suicides in 2010, which highlighted the poor working conditions at the electronics manufacturer contracted with Apple, 38 and the Rana Plaza collapse in 2013, in which 1134 people died when a building owned and operated by a multinational firm collapsed. 39Furthermore, the emphasis of the SDGs and UN on the role of businesses in achieving the goals 40 has further defined the socially acceptable behaviour of businesses. 8he parties including corporate social responsibility provisions in their international investment agreements represent a variety of regions and economies. 28Using WHO region categorizations, 23 of the agreements had a party from the African Region, 64 from the Region of the Americas, 11 from the South-East Asia Region, 65 from the European Region, 12 from the Eastern Mediterranean Region and 31 from the Western Pacific Region.The leading parties were Canada, which was a party to 21 of the 127 agreements, the European Union (EU) with 20, and Brazil with 16.Using World Bank gross national income classifications from October 2023, 41 103 of the agreements had a high-income party, 84 had an upper-middle-income party, 37 had a lower-middle-income party and 13 had a low-income party.
The inclusions were found both in the preambles and the provisions of the agreements, with 36 inclusions appearing in the preambles.In the pro-

Corporate social responsibility inclusions
We observed notable patterns and trends in the way corporate social responsibility inclusions in international investment agreements have been drafted.We identified six distinct categories within our typology, from minimal to high level of detail (Table 1).References to guidelines varied from general mentions through to the specific identification of guidelines, for example, the OECD Guidelines for multinational enterprises on responsible business conduct, 36 2018) is categorized as medium level.First, it refers to the specific corporate social responsibility principles, standards and guidelines such as the OECD Guidelines for multinational enterprises on responsible business conduct, 36 the UN Global Compact 7 and the International Labour Organization Tripartite Declaration. 42Second, it also provides a brief description of the corporate social responsibility activities through its contextual placement in an article on trade and investment promoting sustainable development, titled Trade and Sustainable Development.
Corporate social responsibility inclusions in international investment agreements have been led by three parties: Canada, the EU and Brazil (Fig. 2).Canada is a party to 21 agreements with corporate social responsibility inclusions, the highest of the parties in this data set.The majority are in the medium category (Fig. 2).The EU is a party to 20 agreements and with most of the inclusions in the low-medium and medium categories (Fig. 2).A characteristic unique to these agreements is that 15 of them contain Trade and Sustainable Development chapters, or sections where corporate social responsibility provisions or references to corporate social responsibility are placed.Unique to the Brazilian corporate social responsibility provisions is their specification of investor expectations, rather than encouraging governments to motivate investors to abide by corporate social responsibility standards as in other agreements.

Health inclusions
We found 36 explicit references to health alongside and within corporate social responsibility inclusions across 32 of the 127 (25%) agreements in the data set.Many of these inclusions integrate health protection and health policy explicitly into the description of the expected investor conduct and characteristics of corporate social responsibility.Twenty-nine references in corporate social responsibility provisions were outside of the preamble.Of particular note are the health-related corporate social responsibility clauses in 13 out of the 15 international investment agreements that Brazil is party to in the data set, which include provisions stating that industries operating in the host country as investors are not to seek exemptions to health policy.Using the typology, four of these provisions were categorized as high and nine as medium-high.For example, the Agreement on Cooperation and Facilitation of Investment Between the Federative Republic of Brazil and the United Mexican States (2015) includes a clause to specify that investors shall endeavour to: "[R]efrain from seeking or accepting exemptions that are not established in the legal or regulatory framework relating to human rights, environment, health, security, work, tax system, financial incentives or other issues."The remaining seven references to health were in the preamble of their respective international investment agreements alongside corporate social responsibility inclusions.These inclusions provide a broad interpretive reference point for the agreement and serve to indicate broad policy commitment by the parties to protecting health.For example, in the Agreement Between the Government of Hungary and the Government of the Kyrgyz Republic for the Promotion and Reciprocal Protection of Investments (2020), the preamble includes the following clause: "Seeking to ensure that investment is consistent with the protection of health, safety and the environment, the promotion and protection of internationally and domestically recognised human rights, labour rights, and internationally recognised standards of corporate social responsibility."

Discussion
Our analysis has identified a significant increase in corporate social responsibility inclusions in international investment agreements over the past 16 years, representing a shift towards balancing investor rights with investor obligations.The diversity of parties including corporate social responsibility in investment agreements suggests that efforts to balance these agreements are not constrained by geography or economy.
The corporate social responsibility provisions that were identified in this analysis are embedded in broader shifts within international investment agreements over the past 20 years.For example, the EU structure and placement of corporate social responsibility within Trade and Sustainable Development chapters provides framing and context for the interpretation of corporate social responsibility.The EU has stated that it views corporate social responsibility as a mechanism and set of values through which the SDGs will be implemented in its Member States as part of its holistic approach. 5,43In October 2015, the European Commission adopted a new trade and investment policy titled Trade for all: towards a more responsible trade and investment policy. 44The policy included corporate social responsibility provisions as part of an effort to make the EU's trade and investment policy more responsible through three principles: effectiveness, transparency and values.Our findings reflect the European Commission's development of a holistic and integrated approach over the last decade, particularly concerning corporate social responsibility, responsible business conduct, business and human rights and the SDGs.Similarly, the innovative and unique attributes of the corporate social responsibility provisions in agreements involving Brazil reflect its broader engagement with the international investment law regime. 45istorically, Brazil's congress has not passed traditionally structured investment agreements due to a reluctance and resistance to the investor-State dispute arbitration, seeing an imbalance in favour of foreign investors in the arbitration mechanism. 45,46However, this limitation has not hindered foreign investment. 47Furthermore, the Brazilian government has recently developed its own bilateral investment treaty model, which has State-State arbitration rather than investor-State arbitration. 45he typology of corporate social responsibility inclusions in international investment agreements presented in this paper differentiates vague and lowdetail corporate social responsibility inclusions from clearer and higher level of detail inclusions of corporate social responsibility.By developing a typology of corporate social responsibility inclusions, our analysis contributes to a better understanding of the nature and diversity of these provisions and highlights opportunities to strengthen the inclusion of specific investor expectations, including in relation to public health.Relatively limited explicit inclusion of health in corporate social responsibility is observed to date, and an opportunity exists to strengthen these inclusions as part of efforts towards increased accountability of corporate social responsibility related to public health.In particular, the provisions stating that industries operating in the host country as investors are not to seek exemptions to health policy are consistent with public health goals to reduce the influence of vested interests in health policy-making. 48These provi-sions draw attention to industry efforts to undermine the application of health policy, including through investor-State dispute mechanisms and other domestic avenues.By stating an explicit expectation that investors will not seek to limit or avoid health policy measures, these provisions also send a signal regarding the scope of investor rights and the priority placed on health policy.
The typology is purely descriptive and further research is needed to assess the strength or impact of these inclusions in the event of arbitration.There is a need for research into strong corporate social responsibility provisions, the development of responsible business conduct provisions and the potential benefits of both.Specifically, further legal research into these provisions would improve understanding of their legal implications in the event of arbitration and how they may impact on the occurrence of regulatory chill, which refers to governments' reluctance to pursue new domestic health policy measures following a real or perceived threat of arbitration. 49nternational investment agreements can place positive obligations on foreign investors to act in alignment with government policy objectives through corporate social responsibility provisions.Corporate social responsibility inclusions form part of an effort to rebalance international investment agreements and expand their scope to include sustainable development and health.Understanding the nature of these provisions offers public health policy-makers a potential avenue to improve government oversight of corporate social responsibility, thereby increasing the accountability of power

Fig. 1 .
Fig. 1.Percentage of international investment agreements signed each year with corporate social responsibility inclusions, in the context of corporate social responsibility development, 1976-2023

Fig. 2 .
Fig. 2. Corporate social responsibility inclusions by typology category and leading parties, 2023

Table 1 . Typology of corporate social responsibility inclusions in international investment agreements, 2015-2021 Level of detail Typology criteria No. of inclusions Example of corporate social responsibility inclusion
Bull World Health Organ 2024;102:94-104C | doi: http://dx.doi.org/10.2471/BLT.23.290419Article 14.17.Corporate Social Responsibility Each Party reaffirms the importance of encouraging enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate into their internal policies those internationally recognized standards, guidelines and principles of corporate social responsibility that have been endorsed or are supported by that Party.35 Agreement for the Reciprocal Promotion and Protection of Investments Between the Argentine Republic and the United Arab Emirates, 2018 Article 17.Corporate Social Responsibility The Parties, being mindful of internationally recognized corporate social responsibility standards, guidelines and principles, including the Organisation for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises, shall endeavour to encourage enterprises doing business in its territory or subject to its jurisdiction to voluntarily include said standards, guidelines and principles.(continues. ..)Article 12.Corporate Social Responsibility 12.1 Investors and their investments shall strive to achieve the highest possible level of contribution to the sustainable development of the Host State and the local community, through the adoption of a high degree of socially responsible practices, based on the voluntary principles and standards set out in this Article and internal policies, such as statements of principle that have been endorsed or are supported by the Parties.12.2 The investors and their investments shall endeavour to comply with the following voluntary principles and standards for a responsible business conduct and consistent with the laws adopted by the Host State: a) Contribute to the economic, social and environmental progress, aiming at achieving sustainable development; b) Respect the internationally recognized human rights of those involved in the companies' activities; c) Encourage local capacity-building through close cooperation with the local community; d) Encourage the creation of human capital, especially by creating employment opportunities and offering professional training to workers; e) Refrain from seeking or accepting exemptions that are not established in the legal or regulatory framework relating to human rights, environment, health, security, work, tax system, financial incentives, or other issues; f ) Support and advocate for good corporate governance principles, and develop and apply good corporate governance practices, including anticorruption measures; g) Develop and implement effective self-regulatory practices and management systems that foster a relationship of mutual trust between the companies and the societies in which their operations are conducted; h) Promote the knowledge of and the adherence, by workers, to the corporate policy, through appropriate dissemination of this policy, including professional training program[me]s; i) Refrain from discriminatory or disciplinary action against employees who submit grave reports to the board or, whenever appropriate, to the competent public authorities, about practices that violate the law or corporate policy; j) Encourage, whenever possible, business associates, including service providers and outsources, to apply the principles of business conduct consistent with the principles provided for in this Article; and k) Refrain from any undue interference in local political activities.Bull World Health Organ 2024;102:94-104C | doi: http://dx.doi.org/10.2471/BLT.23.290419 Investors and their investment shall strive to achieve the highest possible level of contribution to the sustainable development of the Host State and the local community, through the adoption of a high degree of socially responsible practices, based on the principles and standards set out in this Article and the OECD Guidelines for Multinational Enterprises (MNEs) as may be applicable on the State Parties.2.Investors and their investment shall endeavour to comply with the following principles and standards for a responsible business conduct and consistent with the laws adopted by the Host State: a) Contribute to the economic, social and environmental progress, aiming at achieving sustainable development; b) Respect the internationally recognized human rights of those involved in the investors' activities; c) Encourage local capacity building through close cooperation with the local community; d) Encourage the creation of human capital, especially by creating employment opportunities and offering professional training to workers; e) Refrain from seeking or accepting exemptions that are not established in the legal or regulatory framework relating to human rights, environment, health, security, work, tax system, financial incentives, or other issues; f ) Support and advocate for good corporate governance principles, and develop and apply good practices of corporate governance; g) Develop and implement effective self-regulatory practices and management systems that foster a relationship of mutual trust between the investment and the societies in which its operations are conducted; h) Promote the knowledge of and the adherence to, by workers, the corporate policy, through appropriate dissemination of this policy, including programs for professional training; i) Refrain from discriminatory or disciplinary action against employees who submit grave reports to the board or, whenever appropriate, to the competent public authorities, about practices that violate the law or corporate policy; j) Encourage, whenever possible, business associates, including service providers and outsources, to apply the principles of business conduct consistent with the principles provided for in this Article; and k) Refrain from any undue interference in local political activities.Corporate social responsibility provisions and health Takwa Tissaoui et al.

Table 1 .
Corporate social responsibility provisions and health Takwa Tissaoui et al.